U.S. Supreme Court refuses to hear appeal of Maine abortion protester

The U.S. Supreme Court on Monday declined to hear the appeal of an abortion protester who was warned several times by police to stop shouting outside the Planned Parenthood clinic in Portland.

The petition for a hearing before the nation’s highest court challenged a ruling by the 1st U.S. Circuit Court of Appeals and was the final step in a legal drama that has unfolded since 2015. Last year, a panel of federal judges reversed a lower federal court’s decision in the suit that protester Andrew March had filed against several Portland police, the city and Maine Attorney General Janet Mills.

In 2016, U.S. District Judge Nancy Torresen, whose office is in Portland, found that the noise section of the Maine Civil Rights Act violated the free speech clause of the First Amendment because it was based on the content of what a protester said. The state appealed that decision to the 1st U.S. Circuit Court of Appeals in Boston.

A three-judge panel ruled that the law is message-neutral and could therefore be enforced if the protesters became loud enough to disrupt the workings of the Planned Parenthood clinic.

One of March’s attorneys, Stephen Whiting of Portland, said he was disappointed that the case would not be heard in Washington, D.C.

“Needless to say, we disagree with the 1st Circuit’s decision and think District Court Judge Torresen was correct in ruling that Maine’s statute prohibiting ‘noise’ outside abortion facilities is unconstitutional on its face, in that it restricts speech,” Whiting said. “But the 1st Circuit’s decision is the law now.”

Kate Oliveri of the Thomas More Law Center in Ann Arbor, Michigan, who also represents March, said March now would challenge the law “as it is applied.”

Because Torresen found the law unconstitutional on its face, she did not reach the question of whether it was unconstitutional as it is being enforced by Portland police. Since the 1st Circuit overruled Torresen, how the law is being applied may now be challenged, according to Oliveri.

“The case is far from over,” she said. “There are several challenges that we will go back to the [Maine U.S.] District Court with.”

She did not say Monday when that challenge would be filed.

Nicole Clegg, vice president of public policy for Planned Parenthood of Northern New England, said in a statement issued Monday that the Supreme Court’s refusal to consider the case “makes it clear that patients have the right to get care without the interruption of protesters.”

“Once our patients walk through the doors of our health center they are entitled to care without harassment and intimidation shouted from the street below,” she said.

Clegg said Monday that protesters at the Portland clinic, located at 443 Congress St., use a variety of tactics “intended to intimidate and interfere with a woman’s ability to access reproductive health care.” They line the sidewalks, photograph people and shout outside the health center “creating an environment that is upsetting and stressful for patients.”

The rulings in the lawsuit addressed only the noise issue.

“The noise provision was the product of a careful legislative process,” Judge David Barron wrote in the 1st Circuit’s 50-page decision. “That process sought to forge a consensus among many competing interests in order to address what all parties to this dispute agree is a serious concern regarding the health and safety of those seeking health services.”

With the U.S. Supreme Court’s denial, the decision Barron wrote stands.

Mills on Monday said the 1st Circuit made the right decision in unanimously upholding the 1995 noise amendment to the Maine Civil Rights Act. She said the more than two-decade-old provision was endorsed by pro-choice and pro-life activists as balancing both groups’ interests.

“This is a major victory for people seeking health care in clinics that attract loud protesters,” she said of the Supreme Court letting the 1st Circuit ruling stand.

Jessica Grondin, director of communications for the City Portland, said Monday that because the city’s attorney is on vacation this week, she could not comment on the Supreme Court’s decision.

The Supreme Court justices’ decision in the case is not unusual. The court agrees to hear oral argument in less than 1 percent of the cases that seek to be considered.